On Wednesday the court heard its second case of the week concerning gay marriage. In United States v. Windsor the issue is whether or not the 1996 Defense of Marriage Act, signed into law by President Clinton, is constitutionally sound. The law prohibits married same sex couples from states which allow same sex marriage from benefitting from more than 1,000 federal laws and programs. For the same reason they may dismiss Hollingsworth v. Perry, they may rule the 1996 law unconstitutional saying that the issue of same sex marriage is an issue left up to each state. Essentially the court may rule that if a particular state allows the practice, then the federal government cannot deny couples the benefits of marriage.
The basic feeling on the court is that this issue is not one for them to deal with… yet. The decisions of the Supreme Court often end up making de facto law… in the 1973 Roe v. Wade decision the Supreme Court said that states do not have the constitutional right to deny abortion. The result is that abortion is legal. They hesitate to make such a ruling in these cases claiming that the issue is just too new.
According to Justice Kennedy with regards to the practice of same sex marriage, “We have five years of information to weigh against 2,000 years of history or more.”